Is the Transgender Persons Bill mere tokenism?

On 15th November, colourful celebrations broke out in the streets of Sydney as statistics revealed that 61.6% of the surveyed population voted “yes” for legalising same-sex marriage. Post the reveal, Australian Prime Minister Malcolm Turnbull assured to pass the bill in the Parliament and turn it into a law by the end of the year. “They voted yes for fairness, yes for commitment, yes for love,” he said.

The poll is non-binding but will help further the rights of the LGBTQ community in the Parliament as it reveals the stance of the majority population. By the end of Wednesday, the Bill had already been introduced in the Parliament. If formalised, Australia will become the 26th nation to legalise the union.

Meanwhile, in India, the struggle for the LGBTQ community for equal rights continues. On 12th November, Delhi witnessed its 10th annual queer pride parade. A number of people showed up to celebrate LGBTQ identity and reproach and demand the dismissal of the regressive Section 377.

The highlight of the year 2009 was Delhi High Court’s decision to strike down the colonial-era law which criminalised consensual sex between the individuals of the LGBTQ community. However, the short-lived happiness came to an end in 2013 when the Supreme Court reversed the decision.

The Bill that made History

In 2014, the Supreme Court gave the landmark ruling of National Legal Services Authority (NALSA) vs Union of India which recognised transgenders as the third gender thus, affecting the lives of around 6 lakh individuals. But this Bill was never made into a law. Based on this Bill, another Bill was drafted. In 2016, the revised Transgender Persons (Protection of Rights) Bill was introduced in the Lok Sabha.

Key features

The bill was an effort to remove discrimination faced by the transgender community in places of education, work, and housing. It was a means to prevent indifferent treatment by penalising the offenders.

The rights bill mandates the government to pay for healthcare services of a transgender person. It also defines a transgender person.

The current Bill gives transgenders the “right to self-perceived gender identity”. It also identifies gender identity as non-binary.

Post the judgement, many government documents have started providing the option of transgender besides male and female.

Despite the court ruling, cases continue to come up where transgender persons are discriminated against. It seems the bias runs deep in the society. Recently, Air India came under scrutiny for denying job as a cabin crew to a transgender woman. Despite faring well in the tests, she wasn’t shortlisted for the job as the ministry of civil aviation hasn’t yet provided a category for transgender persons. In her plea, she cited the Transgender Persons (Protection of Rights) Bill, 2016 and sought justice. The Supreme Court has taken it up and served notices to the ministry and Air India.

Why is the Transgender Persons Bill a failure?

More than a year has passed since the Bill was introduced in the Lok Sabha and over that period, it has faced a lot of criticism. Amnesty International India, a global movement aimed at promoting human rights, urged the government to revise the bill. According to it, “If passed into law in its current form, the bill will undermine the rights of transgender and intersex persons, and violate India’s international human rights obligations and the ruling of the Supreme Court in the landmark NALSA judgement of 2014.”

The definition of a transgender person as per the bill is inadequate. It makes use of terms like ‘trans-men’, ‘trans-women’, ‘gender-queers’, people with ‘inter-sex variations’ who comprise a very small part of the transgender community. It fails to take into consideration the diversity of the community. It also does not address the Section 377.

“The Bill conflates gender, which is a societal construct, with biological sex” (The Hindu).

To avail the rights mentioned in the Bill, a person needs to be certified as a transgender by a Screening Committee consisting of psychiatrists, government official, etc. This has been justified as a precaution to prevent the misuse of the law. “First, the Bill does not have any provision of reservation…therefore, the question does not arise. Secondly, being known as transgender further stigmatises and ostracises a man, so it is an absurd generality to make. Lastly, misuse of a law cannot be an excuse to deprive people of a law, as every law can be, and is, misused” said Vyjayanthi Vasanta Mogli, a founding member of the Telangana Hijra Intersex Transgender Samiti (Frontline). This act of being analysed and scrutinized to be allowed to access one’s fundamental rights is humiliating.

Vyjayanthi Vasanta Mogli

NALSA judgment allowed a transgender person the right to a ‘self-perceived’ identity. The current bill violates the right to a self-identity as per the Article 19 and 21 of the Constitution.

Just mere tokenism?

The Bill is seen as an “insincere attempt” at lawmaking. It lacks appropriate and in-depth research. It is mere tokenism as most of the provisions are missing proper mechanism for enforcement. The initial 2014 Bill was introduced in the Rajya Sabha by a DMK member but was opposed by the BJP. The current Bill, introduced by the Social Justice and Empowerment Minister Thaawarchand Gehlot, failed to consult the members of the transgender community. Caught in the political whirlwind, the new Bill lost its essence.

“If this becomes an Act, it will be a law without teeth. It will not help rectify centuries of discrimination transgender people have faced,” said Vyjayanthi Vasanta Mogli.

The Bill has been strongly opposed by the transgender community. It fails to provide reservations to government institutions, a State level commission to keep a check, and courts for redressal. There is also no mention of other core issues like parenting, marriage etc. Many of the shortcomings of the current Bill were addressed and tackled in the NALSA judgement. The current Bill, if passed would be a major step back for the transgender community. It needs to be revised with consultations from the members of the transgender community and reintroduced in the Parliament as soon as possible.